There also appears to be confusion as to the classification of the message in question. Defendants incorrectly claim the message constitutes a “blog.” Plaintiffs incorrectly claim the message constitutes an e-mail. This type of communication, a message sent on Facebook, a “social networking website,” which has not been considered by this circuit or in any other circuit to the court’s knowledge, is likely a hybrid of the two. The message in question is clearly in the latter category: messages sent to a user’s Facebook inbox are not publicly viewable. Thus, they are not in the “public domain,” where First Amendment rights might attach.

Not too surprising. When I was on jury duty in January, the prosecutors couldn’t decide whether a forum post was an ‘email’ or a ‘blog’ (using both terms interchangeably) and the defense attorney seemed to earnestly believe that you had to be some kind of hacker to save an IM message log. Gross lack of understanding everywhere.